Master Services Agreement is made and entered into by BendTel Inc. (“BendTel”) and the individual or organization identified in a signed order for services (“Customer”), sets forth the terms and conditions that govern the purchase, provision and use of communication, data, voice, transport, wavelength and other such services commonly referred to as “Telecommunications Services” which BendTel Inc. offers to sell (collectively the “Services”). In consideration of mutual conditions and covenants hereinafter described Customer and BendTel agree as follows:
1. Purchase of Service: This Agreement states the general terms and conditions by which BendTel will deliver, and the Customer will receive, products or services specifically defined in a signed order (“Service Agreement”). The Service Agreement governs any and all Services ordered by the Customer and provided by BendTel. The Customer’s payment for, acceptance of, or use of the Services constitutes an acceptance of these terms and an agreement to use Services only for authorized and lawful purposes and in compliance with BendTel’s Acceptable Use Policy (http:/support/msa).
2. Effective Date of Service: The Customer agrees that the billing start date will be the installation date. The Customer is responsible for providing building access needed to perform necessary installation work. If the Customer agrees to a scheduled access date and no access is provided on that date, then the Customer may be billed additional charges due to the lack of access, based on ILEC or BendTel standard rates. The Customer is solely responsible for all internal networking and cabling necessary to accept the service. Failure to provide building access, not having internal networking or cabling ready will not postpone the billing start date. BendTel is not liable for a delay or a failure of service availability. This Agreement constitutes the entire agreement of the parties relating to the matters contained herein, superseding all prior contracts or agreements, whether oral or written, relating to the matters contained herein.
3. Equipment Installation and Interconnection of Services:
a. Other than the facilities, termination equipment or other devices provided by the Customer, and unless otherwise provided herein, BendTel will pay for, provide, install, maintain, operate, control, and own all equipment, cable, and facilities connected to BendTel owned or controlled network (“System Equipment”). BendTel will install equipment and software at the prevailing rates quoted prior to installation.
b. System Equipment will remain BendTel’s exclusive property, regardless of where it is located or how it is attached within the Customer premise, property, or common area. System Equipment shall not be considered a fixture without express written consent of BendTel.
c. The Customer may not rearrange, move, or disconnect the System Equipment, or allow unauthorized access to the System Equipment without prior consent of BendTel. The Customer is responsible for any damage to or loss of System Equipment caused by the Customer’s negligence or willful misconduct, or that of their end users.
d. BendTel has no obligation to install, maintain or repair any equipment owned or provided by the Customer, except as may be specifically provided herein. The Customer is responsible for all special interface equipment or facilities necessary to ensure compatibility and must ensure their equipment does not interfere with the provision or functionality of services to the Customer or other parties with whom BendTel serves.
e. Customer initiated service calls reasonably determined to be caused by a failure, malfunction or inadequacy of Customer provided equipment and/or software will incur a fee for such service calls.
f. The Customer agrees to provide adequate information and assistance necessary for BendTel to obtain authorization for and access to Customer premises and common areas. The Customer agrees to provide entrance facilities from the premise property line to the point of Demarcation that meet prevailing industry and safety standards. The Customer agrees to grant BendTel permission to enter Service location(s) at any time during the course of service interactions. If BendTel and the Customer are unable to obtain the access and facilities described in this Section, then BendTel’s obligations with respect to the Service location(s) and Services shall be terminated without any further liability to BendTel.
4. Residential use only: Unless the Customer subscribes to a plan that expressly permits otherwise, the Customer hereby agrees to use the Services solely in the Customer’s private residence or in the Customer’s residential portion of a premises which is used for both business and residential purposes.
5. No resale: The Customer hereby agrees and represents that they are buying the Services for their own personal use only and that they will not resell or permit another to resell the Services. The Customer agrees to ensure that all uses of the BendTel Equipment and Services installed at their premises are legal and appropriate.
6. Equipment Return: The Customer is responsible for returning all BendTel equipment that was not purchased within 7 days of the service termination date. If equipment is not returned within 7 days of the termination date, the Customer will be billed for the list price of the equipment.
7. Maintenance: As needed to maintain services, BendTel may change, reprogram, reconfigure, substitute, rearrange, replace, remove, or otherwise modify any part of the System Equipment and network, regardless of location. BendTel will not alter technical parameters that may affect Customer’s Service(s) without prior notice and consent of the Customer. With the exception of emergencies and Force Majeure events, BendTel will use its best efforts to notify and coordinate the planned timing of such Maintenance activities with the Customer.
8. Term: The term of this Agreement shall continue until the last date any Services are provided to the Customer under a Service Agreement. The initial term for each subscribed Service will commence upon the date of activation; service is available for the period indicated in the subject Service Agreement. Following the initial term, the Service Agreement shall renew on successive one-month terms following the initial term until terminated by either party by not less than 30 day’s written notice. Month to month rates may apply.
9. Fees and Payment Terms:
a. Billing will commence on the date BendTel installs the Services for the Customer’s use and may be subject to applicable pro-ration to account for partial-month service. The Customer must notify BendTel within five (5) business days of Service Completion of any non-conformance of the Service requiring attention. BendTel will promptly undertake appropriate corrective action and provide a pro-ration of the subject billing to reflect unavailable Services.
b. The Customer agrees to pay monthly charges (“billing”) for the Services. The Customer is responsible for all federal, state, local use, excise and regulatory surcharges for the Services provided by BendTel to the Customer. BendTel shall bill the Customer monthly and all amounts are due upon receipt. Accounts are considered delinquent if not paid in full within 24 days after the invoice date. Amounts in arrears will accrue an interest rate of 1.5% per month from the date due. If payment is not received within 24 days after the invoice date, BendTel may terminate service and collect all monies due. The rates within this agreement shall be in force throughout the term of this agreement unless ILEC loop or service rates increase, then BendTel may increase rates charged to reflect such increases. Rates for this contract term may only increase by the actual cost of the increase to BendTel.
Additional Terms and Conditions Applicable to BendTel Internet Connectivity
10. General: The Customer is responsible for all Internet activity and bandwidth usage originating from their or others’ use of their Services, including under any screen name or password. The Customer agrees to ensure that all use of their Services complies fully with this Agreement. The Customer is solely responsible for protecting the confidentiality of their screen names, passwords, PINs, parental controls, and other security measures. BendTel shall have no liability for the Customer’s failure to do so.
11. Tiering: The Services are offered on a tiered basis. For Internet Service, each tier has limits on the maximum throughput rate at which Customers should expect to be able to send and receive data at any time. The Customer agrees that BendTel may change these and other applicable limits or terms of any tiers by amending the prices. The Customer’s continued use of the Service will constitute acceptance of any new and revised limits and terms. The Customer further agrees that BendTel has the right to monitor usage patterns to facilitate the provision of the Services, to ensure compliance with this Agreement and any additional terms of use found at www.bendtel.com. BendTel may take such steps as it determines appropriate in the event that the Customer’s usage of the Services does not comply with this Agreement or any additional terms of use found at www.bendtel.com.
12. Usage Allowance: Plans with monthly usage allowances will be defined in the Customer service agreement. Unless a usage allowance is defined in the Customer service agreement, a monthly usage allowance will not apply.
13. Service Speeds and Availability. Availability varies and speeds shown may not be available at all service addresses. Speed ranges shown are expressed as “up to” to represent network capabilities between the Customer’s location and BendTel’s network. Most Customers can expect to receive a stable speed within the range of the product purchased as allowed by the quality and capability of the connection; however, actual speeds experienced by Customers vary and are not guaranteed. Some Customers may receive lower than the indicated speed range. Speeds vary due to various factors, including but not limited to: distance from switching locations, network equipment, delivery technology, and external/internal network conditions. Speed tests may produce inconsistent results due to various factors, including the speed test program or website used, the number of devices connected to the Customer’s network and whether the speed test is conducted over Wi-Fi. In order to maximize Internet speeds above 100Mbps, a gigabit wired Network is required, and/or a more advanced wireless network.
Additional Terms and Conditions
14. Termination: Upon expiration of the term agreement, billing will be based on the monthly rates applicable at that time or as renegotiated by BendTel and the Customer. Should the services provided by BendTel be inconsistent with telecommunications common carrier industry standards, and the Customer delivers written notice to BendTel specifying such inconsistency, BendTel will have 30 days to correct the inconsistency and if not corrected, this agreement shall automatically terminate on the 30th day. The Customer will be responsible for all charges for 30 days from the date the written notification is received from the Customer. Should service be terminated by the Customer prior to the expiration of this service agreement term or on 30 day notice without cause after the expiration of the service agreement term, the Customer shall immediately pay the greater of a lump sum equal to all of the remaining monthly recurring charges for the unexpired portion of this agreement and all Installation Costs waived in lieu of the term agreement or the sum of any initially waived Installation Costs and the sum of three months of prior services based on the average of up to six prior months billing history.
15. Disclaimer and Limitation of Liability: ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY BENDTEL, ITS SUPPLIERS AND LICENSORS. In no event shall BendTel be liable for general, special, punitive, consequential or incidental damages including but not limited to, lost revenue, profits or other benefit whether by tort, contract or otherwise, resulting from the failure of the subscribed service or of any related equipment to perform. BendTel shall only be liable to the Customer for any breach of this Agreement in an amount equal to the pro-rated service charges resulting from the breach.
16. Force Majeure: Neither party is liable for any failure of performance if such failure is due to any cause or causes beyond a party’s reasonable control, including without limitation, acts of God, fire, explosion, vandalism, cable cut, adverse weather conditions, governmental action, labor difficulties and supplier failures. The Customer’s invocation of this clause shall not relieve the Customer of their obligation to pay for any services actually received. In the event such failure continues for 60 days, either party may terminate the affected portion of the Services without further liability to the other.
17. Toll Fraud Disclaimer Warning: This disclaimer shall apply to the Customer’s telephone equipment whether it was purchased, rented, installed, maintained or serviced by BendTel, the Customer or a third party. Telephone equipment is designed to be reasonably secure from unauthorized usage and intrusions. However, telephone equipment is not invulnerable to fraud or hacking. BendTel disclaims any express or implied warranty that the telephone equipment is technically immune from or prevents fraudulent intrusions into and or unauthorized use of the telephone equipment including its interconnection to the long-distance network. The Customer is hereby warned that fraudulent use of the telephone equipment, including but not limited to direct inward system access, auto-attendant, voice mail, 8xx, toll free, 900 service, long distance, international calling and 10XXX is possible. BendTel makes no express or implied warranty against such fraud or hacking, and will not be responsible for consequential, incidental, special or exemplary damages or commercial loss, including, without limiting the generality of same, telephone toll charges resulting from such activity even if it could have been prevented through different programming, updated software or processors, better security practices or recommendations.
18. 9-1-1 Information: The Customer shall provide BendTel with accurate up-to-date contact information for public 9-1-1. This information is used by various agencies when a 9-1-1 call is received. It is the customers responsibility to continually update this information with BendTel. BendTel assumes no liability for failure to provide accurate up-to-date information to BendTel.
19. Disconnect Notification: The Customer is responsible for providing disconnect notification to all previous providers. BendTel will not be responsible for any charges incurred as a result of failure to notify any previous provider.
20. Unfulfilled Prior Obligations: If the Customer has any unfulfilled agreement relationship with a current or previous telecommunication service provider, the Customer acknowledges they are responsible for all termination fees.
21. Attorney/Collection Fees: In the event the Customer fails to make payments in a timely manner, BendTel may employ an attorney and/or collection agency to obtain payment. If any arbitration, suit, or action is instituted to interpret or enforce the provisions of this Agreement, to rescind this Agreement, or otherwise with respect to the subject matter of this Agreement, the party prevailing on an issue will be entitled to recover with respect to such issue, in addition to costs, reasonable attorney fees incurred in the preparation, prosecution, or defense of such arbitration, suit, or action as determined by the arbitrator or trial court, and, if any appeal is taken from such decision, reasonable attorney fees as determined on appeal.
22. Confidentiality: Each party hereto shall treat all information made available, disclosed to, developed, or obtained by, the other party as the result of, or related to this Agreement (“Confidential Information”) as confidential, and shall not disclose or use Confidential Information for the benefit of any person other than Customer and BendTel, as the case may be; provided the following information shall not be treated as Confidential Information: (a) information that a party can demonstrate was rightfully in that party’s possession prior to the date of disclosure by the other party, (b) information that a party received from a third party that had a right to make such information available, and (c) information that a party can demonstrate was independently developed by or on behalf of said party, provided further, that the Customer and BendTel shall have no obligation with respect to that portion of Confidential Information which is in or enters the public domain through no wrongful act of either party, or which must be disclosed to others by order of a governmental agency, legislative body, or a court of competent jurisdiction. If either party receives a request for Confidential Information from a third party, the party receiving such notice shall promptly notify the other party in writing of such request, and if the party receiving such notice in good faith believes it is obligated to disclose the requested Confidential Information, the other party shall be given the opportunity to seek judicial or other protection of such Confidential Information, with the cooperation of the party receiving such notice.
23. Changes to this Agreement: BendTel may change the terms and conditions of this Agreement from time to time. Changes to this Agreement supersede all prior Master Services Agreements published to the BendTel website not otherwise negotiated and mutually executed by the parties. Notices are considered given and effective on the date posted on the BendTel web site at www.BendTel.com, or the date BendTel notifies Customer of changes through any of the following: email, postcard, letter, recorded announcement, message on Customer’s bill, an insert in the Customer’s bill, or a call to the Customer’s telephone number, whichever occurs first. The Customer’s continued enrollment in, use of, or payment for Services for 30 days after notice that any such changes have occurred, including changes in prices, taxes and other surcharges, and/or the terms of the Master Services Agreement or any other policy that BendTel maintains, shall be considered an acceptance of such changes by the Customer.
24. Assignment: The Customer shall not assign, pledge, transfer or otherwise convey all or any part of the rights and privileges granted by this Agreement in any manner without prior written consent of BendTel, which consent it will not unreasonably withhold.
25. Relationship of Parties: In the performance of its responsibilities hereunder, the Customer and BendTel are and at all times shall be independent contractors. Neither the Customer or BendTel shall have any power or authority to bind the other party or to assume or create any obligation or responsibility, express or implied, on behalf or in the name of the other party, except as expressly authorized under this Agreement or by the other Party.
26. Severability: If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way.
27. Entire Agreement: This agreement contains the entire understanding between the two parties and no statement, promise or inducements made by either party or agent of either party that is not contained in this agreement shall be valid or binding and the agreement may not be amended, modified or altered in any manner except in writing, signed by both parties.